Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Friday, August 27, 2010

Leo Strauss and Natural Right: The Seesaw of Justice and Law

JUSTICE AND LAW SEEM TO BE both easy and tense bedfellows. It is just to obey the law, to apply it equally, to govern in accord with the rule of law. This is generally conceded regardless of the law in question. Yet no one reasonably equates law with justice. We talk of unjust laws and just laws. It is just this sort of seesaw or teeter-totter between justice and law that Strauss sees evidentiary of a distinction between convention and nature. When law and justice teeter or "see" as one, doesn't that imply "that there is a measure of universal agreement in regard to justice" and "reflect[] natural right dimly"? When law and justice totter or "saw" as distinct, does that not also "point to the workings of nature"? Strauss, 101. In both corroboration and contradiction, the easy and uneasy relationship between justice and law are suggestive of natural right, natural justice, a natural law.

The Seesaw of Justice and Law

The reason for this tension between law and justice is that human law shows itself to be something self-contradictory:
One the one hand, [human] law claims to be something essentially good or noble: it is the law that saves the cities and everything else. On the other hand, the law presents itself as the common opinion or decision of the city, i.e., of the multitude of citizens. As such, it is by no means essentially good or noble. It may very well be the work of folly or baseness.
Strauss, 101. It is easy enough to see the negative side of law: its folly and baseness. We can all see the truth in the remark often (but wrongly) attributed to Otto von Bismark that laws are like sausages--it is best not to see them being made. The humor in Mortimer Zuckerman's quip that law is the opposite of sex in that even when it's good, it's lousy is easily grasped precisely because we all have experienced the seedy side of law. The harder question is whether the law's claim to noble pedigree is something that can be justified: is it entirely unfounded--are we really dealing with just sausage or the opposite of sex--or is there something real, something true in the claim that law is a noble enterprise?

Heraclitus sees the law as important as the city walls, and so it is in that Heraclitean spirit that the "law claims that it saves the cities and everything else." Strauss, 101. Here is its warrant to nobility: "It claims to secure the common good," and "the common good is exactly what we mean by 'the just.'" Strauss, 101-02. If the law's goodness is thus linked with the common good, then it cannot be merely conventional. It is easy to envision laws that are not conducive to the common good a city. What if a law was passed mandating all married couples to have but one child? What about the laws against Jews passed by the Nazi? What about the laws that institutionalized human chattel slavery? Here one stumbles upon a great truth:
[T]he conventions of a city cannot make good for the city what is, in fact, fatal for it and vice versa. The nature of things and not convention then determines in each case what is just. This implies that what is just may very well differ from city to city and from period to period: the variety of just things is not only compatible with, but a consequence of, the principle of justice, namely that the just is identical with the common good. Knowledge of what is the just here and now, which is knowledge of what is by nature, or intrinsically, good for this city now, cannot be scientific knowledge. Still less can it be the knowledge of the type of sense perception. To establish what is just in each case is the function of the political art or skill.
Strauss, 102 (emphasis added). So it would seem, then, that the law's effort to promote the common good is the natural justice which the law seeks to implement, and is what informs the law, fills the law with the nobility it claims. So the advocates of natural right appear to have clinched the definitive argument against the conventionalist.

Have they? Conventionalism does not die that easily. The advocate of the theory that law is nothing but convention, and that there is no such thing as natural right and justice persists in his contrarian attitude. Conventionalism argues further that there is no such thing, in truth, as the common good. And even if there were such a thing as the "common good," it would be nothing but the product of convention. Since the "common good," if it exists, relates to an artificial or conventional body (the city is established by convention), then it follows that the "common good" is, at heart, conventional, and all law is similarly conventional.

Is the notion of "common good" just a guise for those who are in power to justify the binding nature of the law that they have passed for the ruling power's interests? Is law necessarily partisan? If law can really be nonpartisan, that is, for the common good, then is not the common good defined by the political society in question? And aren't the bounds of that political society, whether they are defined by geographic boundaries, by language or custom, or the laws that define who is a citizen and who is a foreigner, conventional? Doesn't this mean, at bottom, that the common good of the citizens of a city is defined arbitrarily, by convention? Is there any way to escape this conventionalism?

These are issues explored by Strauss as he address the sophisticated counterarguments of the conventionalists to the proponents of natural right, and expose their hidden flaws.

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